HB 985 — Sovereign Immunity

95.11(9).

This subparagraph applies to a claim accruing at any time but shall also be construed in accordance with s.

95.11(9) to apply only to claims which would not have been time barred on or before July 1, 2010.

(d) For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever is sooner;

Unless the appropriate agency had actual notice of the information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused failure to disclose shall, upon hearing and order of court, cause the claimant to be liable for double the original undisclosed judgment and, upon further motion, the court shall enter judgment for the agency in that Pageamount. 5of 7 CODING:

Except as provided otherwise in this subsection, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 3 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section.

For purposes of this subsection, in medical malpractice actions and in wrongful death actions, the failure of the Department of Financial Services or Page 6of 61 CODING:

hb0985-02-c2hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB985CS/HB985 2022 amount.the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim.

Except as provided otherwise in this subsection, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 3 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section.

For purposes of this subsection, in medical malpractice actions and in wrongful death actions, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim.

768.31(4);, and (b) An action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for Pagesuch 6ofactions 7in CODING:s.

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hb0985-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB985 2022 such actions in s.

and (c) An action arising from anyacts act constituting a violation of s.

This paragraph applies to a claim accruing at any time as long as such claim would not have been time barred on or before July 1, 2010, under s.

95.11(9).

SectionsFor 45.061,the 110.504,purpose 111.071,of 163.01,incorporating 190.043,the 213.015,amendment 252.51,made 252.89,by 252.944,this 260.0125,act 284.31,to 284.38,section 322.13,768.28, 337.19, 341.302, 373.1395, 375.251, 381.0056, 393.075, 395.1055, 403.706, 409.993, 455.221, 455.32, 456.009, 456.076, 471.038, 472.006, 497.167, 513.118, 548.046, 556.106, 589.19, 723.0611, 760.11, 766.1115, 766.112, 768.1355, 768.295, 944.713, 946.5026, 946.514, 961.06, 1002.33, 1002.333, 1002.34, 1002.55, 1002.83, 1002.88, 1006.24, and 1006.261, Florida Statutes, arein reenacteda forPage the7of purpose61 ofCODING: incorporating the amendments made by this act to s.

768.28,Words Floridastrickenare Statutes,deletions; in references thereto.

words underlined are additions.

hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 reference thereto, subsection (5) of section 45.061, Florida Statutes, is reenacted to read:

45.061 Offers of settlement.— (5) Sanctions authorized under this section may be imposed notwithstanding any limitation on recovery of costs or expenses which may be provided by contract or in other provisions of Florida law.

This section shall not be construed to waive the limits of sovereign immunity set forth in s.

768.28.

ExceptFor asthe otherwisepurpose expresslyof providedincorporating herein,the amendment made by this act applies to claimssection accruing768.28, onFlorida orStatutes, afterin Octobera 1,reference 2023.thereto, subsection (4) of section 110.504, Florida Statutes, is reenacted to read:

110.504 Volunteer benefits.— (4) Volunteers shall be covered by state liability protection in accordance with the definition of a volunteer and the provisions of s.

768.28.

ThisFor the purpose of incorporating the amendment made by this act shallto takesection effect768.28, OctoberFlorida 1,Statutes, 2023.in a reference thereto, paragraph (a) of subsection (1) of section 111.071, Florida Statutes, is reenacted to read:

111.071 Payment of judgments or settlements against certain public officers or employees.— (1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to Page 7of8of 761 CODING:

hb0985-02-c2hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 expend available funds to pay:

(a) Any final judgment, including damages, costs, and attorney's fees, arising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s.

111.07.

If the civil action arises under s.

768.28 as a tort claim, the limitations and provisions of s.

768.28 governing payment shall apply.

If the action is a civil rights action arising under 42 U.S.C.

s.

1983, or similar federal statutes, payments for the full amount of the judgment may be made unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally.

Section 5.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (k) of subsection (15) of section 163.01, Florida Statutes, is reenacted to read:

163.01 Florida Interlocal Cooperation Act of 1969.— (15) Notwithstanding any other provision of this section or of any other law except s.

361.14, any public agency of this state which is an electric utility, or any separate legal entity created pursuant to the provisions of this section, the membership of which consists only of electric utilities, and which exercises or proposes to exercise the powers granted by part II of chapter 361, the Joint Power Act, may exercise any or Page 9of 61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 all of the following powers:

(k) The limitations on waiver in the provisions of s.

768.28 or any other law to the contrary notwithstanding, the Legislature, in accordance with s.

13, Art.

X of the State Constitution, hereby declares that any such legal entity or any public agency of this state that participates in any electric project waives its sovereign immunity to:

1.

All other persons participating therein;

and 2.

Any person in any manner contracting with a legal entity of which any such public agency is a member, with relation to:

a.

Ownership, operation, or any other activity set forth in sub-subparagraph (b)2.d.

with relation to any electric project;

or b.

The supplying or purchasing of services, output, capacity, energy, or any combination thereof.

Section 6.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 190.043, Florida Statutes, is reenacted to read:

190.043 Suits against the district.—Any suit or action brought or maintained against the district for damages arising out of tort, including, without limitation, any claim arising upon account of an act causing an injury or loss of property, personal injury, or death, shall be subject to the limitations Page 10 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 provided in s.

768.28.

Section 7.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (13) of section 213.015, Florida Statutes, is reenacted to read:

213.015 Taxpayer rights.—There is created a Florida Taxpayer's Bill of Rights to guarantee that the rights, privacy, and property of Florida taxpayers are adequately safeguarded and protected during tax assessment, collection, and enforcement processes administered under the revenue laws of this state.

The Taxpayer's Bill of Rights compiles, in one document, brief but comprehensive statements which explain, in simple, nontechnical terms, the rights and obligations of the Department of Revenue and taxpayers.

Section 192.0105 provides additional rights afforded to payors of property taxes and assessments.

The rights afforded taxpayers to ensure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in other parts of the Florida Statutes or rules of the Department of Revenue.

The rights so guaranteed Florida taxpayers in the Florida Statutes and the departmental rules are:

(13) The right to an action at law within the limitations of s.

768.28, relating to sovereign immunity, to recover damages against the state or the Department of Revenue for injury caused by the wrongful or negligent act or omission of a department Page 11 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 officer or employee (see s.

768.28).

Section 8.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 252.51, Florida Statutes, is reenacted to read:

252.51 Liability.—Any person or organization, public or private, owning or controlling real estate or other premises who voluntarily and without compensation, other than payment or reimbursement of costs and expenses, grants a license or privilege or otherwise permits the designation by the local emergency management agency or use of the whole or any part of such real estate or premises for the purpose of sheltering persons during an actual, impending, mock, or practice emergency, together with her or his successor in interest, if any, shall not be liable for the death of, or injury to, any person on or about such real estate or premises during the actual, impending, mock, or practice emergency, or for loss of, or damage to, the property of such person, solely by reason or as a result of such license, privilege, designation, or use, unless the gross negligence or the willful and wanton misconduct of such person owning or controlling such real estate or premises or her or his successor in interest is the proximate cause of such death, injury, loss, or damage occurring during such sheltering period.

Any such person or organization who provides such shelter space for compensation shall be deemed to Page 12 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 be an instrumentality of the state or its applicable agency or subdivision for the purposes of s.

768.28.

Section 9.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 252.89, Florida Statutes, is reenacted to read:

252.89 Tort liability.—The commission and the committees shall be state agencies, and the members of the commission and committees shall be officers, employees, or agents of the state for the purposes of s.

768.28.

Section 10.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 252.944, Florida Statutes, is reenacted to read:

252.944 Tort liability.—The commission and the committees are state agencies, and the members of the commission and committees are officers, employees, or agents of the state for the purpose of s.

768.28.

Section 11.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (2) of section 260.0125, Florida Statutes, is reenacted to read:

260.0125 Limitation on liability of private landowners whose property is designated as part of the statewide system of greenways and trails.— Page 13 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 (2) Any private landowner who consents to designation of his or her land as part of the statewide system of greenways and trails pursuant to s.

260.016(2)(d) without compensation shall be considered a volunteer, as defined in s.

110.501, and shall be covered by state liability protection pursuant to s.

768.28, including s.

768.28(9).

Section 12.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 284.31, Florida Statutes, is reenacted to read:

284.31 Scope and types of coverages;

separate accounts.— The Insurance Risk Management Trust Fund must, unless specifically excluded by the Department of Financial Services, cover all departments of the State of Florida and their employees, agents, and volunteers and must provide separate accounts for workers' compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C.

s.

1983 or similar federal statutes, state agency firefighter cancer benefits payable under s.

112.1816(2), and court-awarded attorney fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission.

Unless specifically excluded by the Department of Financial Services, the Insurance Risk Management Trust Fund must provide fleet automotive liability coverage to motor Page 14 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 vehicles titled to the state, or to any department of the state, when such motor vehicles are used by community transportation coordinators performing, under contract to the appropriate department of the state, services for the transportation disadvantaged under part I of chapter 427.

Such fleet automotive liability coverage is primary and is subject to s.

768.28 and parts II and III of chapter 284, and applicable rules adopted thereunder, and the terms and conditions of the certificate of coverage issued by the Department of Financial Services.

Section 13.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, section 284.38, Florida Statutes, is reenacted to read:

284.38 Waiver of sovereign immunity;

effect.—The insurance programs developed herein shall provide limits as established by the provisions of s.

768.28 if a tort claim.

The limits provided in s.

768.28 shall not apply to a civil rights action arising under 42 U.S.C.

s.

1983 or similar federal statute.

Payment of a pending or future claim or judgment arising under any of said statutes may be made upon this act becoming a law, unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally;

however, the fund is authorized to pay all other court-ordered attorney's fees as provided under s.

284.31.

Section 14.

For the purpose of incorporating the amendment Page 15 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (b) of subsection (1) of section 322.13, Florida Statutes, is reenacted to read:

322.13 Driver license examiners.— (1) (b) Those persons serving as driver license examiners are not liable for actions taken within the scope of their employment or designation, except as provided by s.

768.28.

Section 15.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (1) of section 337.19, Florida Statutes, is reenacted to read:

337.19 Suits by and against department;

limitation of actions;

forum.— (1) Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement.

In any such suit, the department and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.

Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions Page 16 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 from equitable claims and equitable remedies.

Notwithstanding anything to the contrary contained in this section, no employee or agent of the department may be held personally liable to an extent greater than that pursuant to s.

768.28 provided that no suit sounding in tort shall be maintained against the department.

Section 16.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (17) of section 341.302, Florida Statutes, is reenacted to read:

341.302 Rail program;

duties and responsibilities of the department.—The department, in conjunction with other governmental entities, including the rail enterprise and the private sector, shall develop and implement a rail program of statewide application designed to ensure the proper maintenance, safety, revitalization, and expansion of the rail system to assure its continued and increased availability to respond to statewide mobility needs.

Within the resources provided pursuant to chapter 216, and as authorized under federal law, the department shall:

(17) In conjunction with the acquisition, ownership, construction, operation, maintenance, and management of a rail corridor, have the authority to:

(a) Assume obligations pursuant to the following:

1.a.

The department may assume the obligation by contract Page 17 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 to forever protect, defend, indemnify, and hold harmless the freight rail operator, or its successors, from whom the department has acquired a real property interest in the rail corridor, and that freight rail operator's officers, agents, and employees, from and against any liability, cost, and expense, including, but not limited to, commuter rail passengers and rail corridor invitees in the rail corridor, regardless of whether the loss, damage, destruction, injury, or death giving rise to any such liability, cost, or expense is caused in whole or in part, and to whatever nature or degree, by the fault, failure, negligence, misconduct, nonfeasance, or misfeasance of such freight rail operator, its successors, or its officers, agents, and employees, or any other person or persons whomsoever;

or b.

The department may assume the obligation by contract to forever protect, defend, indemnify, and hold harmless National Railroad Passenger Corporation, or its successors, and officers, agents, and employees of National Railroad Passenger Corporation, from and against any liability, cost, and expense, including, but not limited to, commuter rail passengers and rail corridor invitees in the rail corridor, regardless of whether the loss, damage, destruction, injury, or death giving rise to any such liability, cost, or expense is caused in whole or in part, and to whatever nature or degree, by the fault, failure, negligence, misconduct, nonfeasance, or misfeasance of National Railroad Passenger Corporation, its successors, or its officers, Page 18 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 agents, and employees, or any other person or persons whomsoever.

2.

The assumption of liability of the department by contract pursuant to sub-subparagraph 1.a.

or sub-subparagraph 1.b.

may not in any instance exceed the following parameters of allocation of risk:

a.

The department may be solely responsible for any loss, injury, or damage to commuter rail passengers, or rail corridor invitees, or trespassers, regardless of circumstances or cause, subject to sub-subparagraph b.

and subparagraphs 3., 4., 5., and 6.

b.(I) In the event of a limited covered accident, the authority of the department to protect, defend, and indemnify the freight operator for all liability, cost, and expense, including punitive or exemplary damages, in excess of the deductible or self-insurance retention fund established under paragraph (b) and actually in force at the time of the limited covered accident exists only if the freight operator agrees, with respect to the limited covered accident, to protect, defend, and indemnify the department for the amount of the deductible or self-insurance retention fund established under paragraph (b) and actually in force at the time of the limited covered accident.

(II) In the event of a limited covered accident, the authority of the department to protect, defend, and indemnify Page 19 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 National Railroad Passenger Corporation for all liability, cost, and expense, including punitive or exemplary damages, in excess of the deductible or self-insurance retention fund established under paragraph (b) and actually in force at the time of the limited covered accident exists only if National Railroad Passenger Corporation agrees, with respect to the limited covered accident, to protect, defend, and indemnify the department for the amount of the deductible or self-insurance retention fund established under paragraph (b) and actually in force at the time of the limited covered accident.

3.

When only one train is involved in an incident, the department may be solely responsible for any loss, injury, or damage if the train is a department train or other train pursuant to subparagraph 4., but only if:

a.

When an incident occurs with only a freight train involved, including incidents with trespassers or at grade crossings, the freight rail operator is solely responsible for any loss, injury, or damage, except for commuter rail passengers and rail corridor invitees;

or b.

When an incident occurs with only a National Railroad Passenger Corporation train involved, including incidents with trespassers or at grade crossings, National Railroad Passenger Corporation is solely responsible for any loss, injury, or damage, except for commuter rail passengers and rail corridor invitees.

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 4.

For the purposes of this subsection:

a.

Any train involved in an incident that is neither the department's train nor the freight rail operator's train, hereinafter referred to in this subsection as an "other train," may be treated as a department train, solely for purposes of any allocation of liability between the department and the freight rail operator only, but only if the department and the freight rail operator share responsibility equally as to third parties outside the rail corridor who incur loss, injury, or damage as a result of any incident involving both a department train and a freight rail operator train, and the allocation as between the department and the freight rail operator, regardless of whether the other train is treated as a department train, shall remain one-half each as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident.

The involvement of any other train shall not alter the sharing of equal responsibility as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

or b.

Any train involved in an incident that is neither the department's train nor the National Railroad Passenger Corporation's train, hereinafter referred to in this subsection as an "other train," may be treated as a department train, solely for purposes of any allocation of liability between the department and National Railroad Passenger Corporation only, but Page 21 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 only if the department and National Railroad Passenger Corporation share responsibility equally as to third parties outside the rail corridor who incur loss, injury, or damage as a result of any incident involving both a department train and a National Railroad Passenger Corporation train, and the allocation as between the department and National Railroad Passenger Corporation, regardless of whether the other train is treated as a department train, shall remain one-half each as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident.

The involvement of any other train shall not alter the sharing of equal responsibility as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident.

5.

When more than one train is involved in an incident:

a.(I) If only a department train and freight rail operator's train, or only an other train as described in sub- subparagraph 4.a.

and a freight rail operator's train, are involved in an incident, the department may be responsible for its property and all of its people, all commuter rail passengers, and rail corridor invitees, but only if the freight rail operator is responsible for its property and all of its people, and the department and the freight rail operator each share one-half responsibility as to trespassers or third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

or Page 22 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 (II) If only a department train and a National Railroad Passenger Corporation train, or only an other train as described in sub-subparagraph 4.b.

and a National Railroad Passenger Corporation train, are involved in an incident, the department may be responsible for its property and all of its people, all commuter rail passengers, and rail corridor invitees, but only if National Railroad Passenger Corporation is responsible for its property and all of its people, all National Railroad Passenger Corporation's rail passengers, and the department and National Railroad Passenger Corporation each share one-half responsibility as to trespassers or third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident.

b.(I) If a department train, a freight rail operator train, and any other train are involved in an incident, the allocation of liability between the department and the freight rail operator, regardless of whether the other train is treated as a department train, shall remain one-half each as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

the involvement of any other train shall not alter the sharing of equal responsibility as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

and, if the owner, operator, or insurer of the other train makes any payment to injured third parties outside the rail corridor who incur loss, Page 23 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 injury, or damage as a result of the incident, the allocation of credit between the department and the freight rail operator as to such payment shall not in any case reduce the freight rail operator's third-party-sharing allocation of one-half under this paragraph to less than one-third of the total third party liability;

or (II) If a department train, a National Railroad Passenger Corporation train, and any other train are involved in an incident, the allocation of liability between the department and National Railroad Passenger Corporation, regardless of whether the other train is treated as a department train, shall remain one-half each as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

the involvement of any other train shall not alter the sharing of equal responsibility as to third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident;

and, if the owner, operator, or insurer of the other train makes any payment to injured third parties outside the rail corridor who incur loss, injury, or damage as a result of the incident, the allocation of credit between the department and National Railroad Passenger Corporation as to such payment shall not in any case reduce National Railroad Passenger Corporation's third-party-sharing allocation of one-half under this sub-subparagraph to less than one-third of the total third party liability.

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 6.

Any such contractual duty to protect, defend, indemnify, and hold harmless such a freight rail operator or National Railroad Passenger Corporation shall expressly include a specific cap on the amount of the contractual duty, which amount shall not exceed $200 million without prior legislative approval, and the department to purchase liability insurance and establish a self-insurance retention fund in the amount of the specific cap established under this subparagraph, provided that:

a.

No such contractual duty shall in any case be effective nor otherwise extend the department's liability in scope and effect beyond the contractual liability insurance and self- insurance retention fund required pursuant to this paragraph;

and b.(I) The freight rail operator's compensation to the department for future use of the department's rail corridor shall include a monetary contribution to the cost of such liability coverage for the sole benefit of the freight rail operator.

(II) National Railroad Passenger Corporation's compensation to the department for future use of the department's rail corridor shall include a monetary contribution to the cost of such liability coverage for the sole benefit of National Railroad Passenger Corporation.

(b) Purchase liability insurance, which amount shall not exceed $200 million, and establish a self-insurance retention Page 25 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 fund for the purpose of paying the deductible limit established in the insurance policies it may obtain, including coverage for the department, any freight rail operator as described in paragraph (a), National Railroad Passenger Corporation, commuter rail service providers, governmental entities, or any ancillary development, which self-insurance retention fund or deductible shall not exceed $10 million.

The insureds shall pay a reasonable monetary contribution to the cost of such liability coverage for the sole benefit of the insured.

Such insurance and self-insurance retention fund may provide coverage for all damages, including, but not limited to, compensatory, special, and exemplary, and be maintained to provide an adequate fund to cover claims and liabilities for loss, injury, or damage arising out of or connected with the ownership, operation, maintenance, and management of a rail corridor.

(c) Incur expenses for the purchase of advertisements, marketing, and promotional items.

(d) Without altering any of the rights granted to the department under this section, agree to assume the obligations to indemnify and insure, pursuant to s.

343.545, freight rail service, intercity passenger rail service, and commuter rail service on a department-owned rail corridor, whether ownership is in fee or by easement, or on a rail corridor where the department has the right to operate.

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 Neither the assumption by contract to protect, defend, indemnify, and hold harmless;

the purchase of insurance;

nor the establishment of a self-insurance retention fund shall be deemed to be a waiver of any defense of sovereign immunity for torts nor deemed to increase the limits of the department's or the governmental entity's liability for torts as provided in s.

768.28.

The requirements of s.

287.022(1) shall not apply to the purchase of any insurance under this subsection.

The provisions of this subsection shall apply and inure fully as to any other governmental entity providing commuter rail service and constructing, operating, maintaining, or managing a rail corridor on publicly owned right-of-way under contract by the governmental entity with the department or a governmental entity designated by the department.

Notwithstanding any law to the contrary, procurement for the construction, operation, maintenance, and management of any rail corridor described in this subsection, whether by the department, a governmental entity under contract with the department, or a governmental entity designated by the department, shall be pursuant to s.

287.057 and shall include, but not be limited to, criteria for the consideration of qualifications, technical aspects of the proposal, and price.

Further, any such contract for design-build shall be procured pursuant to the criteria in s.

337.11(7).

Section 17.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a Page 27 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 reference thereto, subsection (6) of section 373.1395, Florida Statutes, is reenacted to read:

373.1395 Limitation on liability of water management district with respect to areas made available to the public for recreational purposes without charge.— (6) This section does not relieve any water management district of any liability that would otherwise exist for gross negligence or a deliberate, willful, or malicious injury to a person or property.

This section does not create or increase the liability of any water management district or person beyond that which is authorized by s.

768.28.

Section 18.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (a) of subsection (3) of section 375.251, Florida Statutes, is reenacted to read:

375.251 Limitation on liability of persons making available to public certain areas for recreational purposes without charge.— (3)(a) An owner of an area who enters into a written agreement concerning the area with a state agency for outdoor recreational purposes, where such agreement recognizes that the state agency is responsible for personal injury, loss, or damage resulting in whole or in part from the state agency's use of the area under the terms of the agreement subject to the limitations and conditions specified in s.

768.28, owes no duty of care to Page 28 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 keep the area safe for entry or use by others, or to give warning to persons entering or going on the area of any hazardous conditions, structures, or activities thereon.

An owner who enters into a written agreement concerning the area with a state agency for outdoor recreational purposes:

1.

Is not presumed to extend any assurance that the area is safe for any purpose;

2.

Does not incur any duty of care toward a person who goes on the area that is subject to the agreement;

or 3.

Is not liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on the area that is subject to the agreement.

Section 19.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (9) of section 381.0056, Florida Statutes, is reenacted to read:

381.0056 School health services program.— (9) Any health care entity that provides school health services under contract with the department pursuant to a school health services plan developed under this section, and as part of a school nurse services public-private partnership, is deemed to be a corporation acting primarily as an instrumentality of the state solely for the purpose of limiting liability pursuant to s.

768.28(5).

The limitations on tort actions contained in s.

768.28(5) shall apply to any action against the entity with Page 29 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 respect to the provision of school health services, if the entity is acting within the scope of and pursuant to guidelines established in the contract or by rule of the department.

The contract must require the entity, or the partnership on behalf of the entity, to obtain general liability insurance coverage, with any additional endorsement necessary to insure the entity for liability assumed by its contract with the department.

The Legislature intends that insurance be purchased by entities, or by partnerships on behalf of the entity, to cover all liability claims, and under no circumstances shall the state or the department be responsible for payment of any claims or defense costs for claims brought against the entity or its subcontractor for services performed under the contract with the department.

This subsection does not preclude consideration by the Legislature for payment by the state of any claims bill involving an entity contracting with the department pursuant to this section.

Section 20.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (3) of section 393.075, Florida Statutes, is reenacted to read:

393.075 General liability coverage.— (3) This section shall not be construed as designating or not designating that a person who owns or operates a foster care facility or group home facility as described in this section or Page 30 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 any other person is an employee or agent of the state.

Nothing in this section amends, expands, or supersedes the provisions of s.

768.28.

Section 21.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (g) of subsection (10) of section 395.1055, Florida Statutes, is reenacted to read:

395.1055 Rules and enforcement.— (10) The agency shall establish a pediatric cardiac technical advisory panel, pursuant to s.

20.052, to develop procedures and standards for measuring outcomes of pediatric cardiac catheterization programs and pediatric cardiovascular surgery programs.

(g) Panel members are agents of the state for purposes of s.

768.28 throughout the good faith performance of the duties assigned to them by the Secretary of Health Care Administration.

Section 22.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (c) of subsection (17) of section 403.706, Florida Statutes, is reenacted to read:

403.706 Local government solid waste responsibilities.— (17) To effect the purposes of this part, counties and municipalities are authorized, in addition to other powers granted pursuant to this part:

(c) To waive sovereign immunity and immunity from suit in Page 31 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 federal court by vote of the governing body of the county or municipality to the extent necessary to carry out the authority granted in paragraphs (a) and (b), notwithstanding the limitations prescribed in s.

768.28.

Section 23.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (1), paragraph (a) of subsection (2), and paragraph (a) of subsection (3) of section 409.993, Florida Statutes, are reenacted to read:

409.993 Lead agencies and subcontractor liability.— (1) FINDINGS.— (a) The Legislature finds that the state has traditionally provided foster care services to children who are the responsibility of the state.

As such, foster children have not had the right to recover for injuries beyond the limitations specified in s.

768.28.

The Legislature has determined that foster care and related services should be outsourced pursuant to this section and that the provision of such services is of paramount importance to the state.

The purpose of such outsourcing is to increase the level of safety, security, and stability of children who are or become the responsibility of the state.

One of the components necessary to secure a safe and stable environment for such children is the requirement that private providers maintain liability insurance.

As such, insurance needs to be available and remain available to Page 32 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 nongovernmental foster care and related services providers without the resources of such providers being significantly reduced by the cost of maintaining such insurance.

(b) The Legislature further finds that, by requiring the following minimum levels of insurance, children in outsourced foster care and related services will gain increased protection and rights of recovery in the event of injury than currently provided in s.

768.28.

(2) LEAD AGENCY LIABILITY.— (a) Other than an entity to which s.

768.28 applies, an eligible community-based care lead agency, or its employees or officers, except as otherwise provided in paragraph (b), shall, as a part of its contract, obtain a minimum of $1 million per occurrence with a policy period aggregate limit of $3 million in general liability insurance coverage.

The lead agency must also require that staff who transport client children and families in their personal automobiles in order to carry out their job responsibilities obtain minimum bodily injury liability insurance in the amount of $100,000 per person per any one automobile accident, and subject to such limits for each person, $300,000 for all damages resulting from any one automobile accident, on their personal automobiles.

In lieu of personal motor vehicle insurance, the lead agency's casualty, liability, or motor vehicle insurance carrier may provide nonowned automobile liability coverage.

This insurance provides liability Page 33 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 insurance for an automobile that the lead agency uses in connection with the lead agency's business but does not own, lease, rent, or borrow.

This coverage includes an automobile owned by an employee of the lead agency or a member of the employee's household but only while the automobile is used in connection with the lead agency's business.

The nonowned automobile coverage for the lead agency applies as excess coverage over any other collectible insurance.

The personal automobile policy for the employee of the lead agency shall be primary insurance, and the nonowned automobile coverage of the lead agency acts as excess insurance to the primary insurance.

The lead agency shall provide a minimum limit of $1 million in nonowned automobile coverage.

In a tort action brought against such a lead agency or employee, net economic damages shall be limited to $2 million per liability claim and $200,000 per automobile claim, including, but not limited to, past and future medical expenses, wage loss, and loss of earning capacity, offset by any collateral source payment paid or payable.

In any tort action brought against a lead agency, noneconomic damages shall be limited to $400,000 per claim.

A claims bill may be brought on behalf of a claimant pursuant to s.

768.28 for any amount exceeding the limits specified in this paragraph.

Any offset of collateral source payments made as of the date of the settlement or judgment shall be in accordance with s.

768.76.

The lead agency is not liable in tort for the acts or omissions Page 34 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 of its subcontractors or the officers, agents, or employees of its subcontractors.

(3) SUBCONTRACTOR LIABILITY.— (a) A subcontractor of an eligible community-based care lead agency that is a direct provider of foster care and related services to children and families, and its employees or officers, except as otherwise provided in paragraph (b), must, as a part of its contract, obtain a minimum of $1 million per occurrence with a policy period aggregate limit of $3 million in general liability insurance coverage.

The subcontractor of a lead agency must also require that staff who transport client children and families in their personal automobiles in order to carry out their job responsibilities obtain minimum bodily injury liability insurance in the amount of $100,000 per person in any one automobile accident, and subject to such limits for each person, $300,000 for all damages resulting from any one automobile accident, on their personal automobiles.

In lieu of personal motor vehicle insurance, the subcontractor's casualty, liability, or motor vehicle insurance carrier may provide nonowned automobile liability coverage.

This insurance provides liability insurance for automobiles that the subcontractor uses in connection with the subcontractor's business but does not own, lease, rent, or borrow.

This coverage includes automobiles owned by the employees of the subcontractor or a member of the employee's household but only while the automobiles are used in Page 35 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 connection with the subcontractor's business.

The nonowned automobile coverage for the subcontractor applies as excess coverage over any other collectible insurance.

The personal automobile policy for the employee of the subcontractor shall be primary insurance, and the nonowned automobile coverage of the subcontractor acts as excess insurance to the primary insurance.

The subcontractor shall provide a minimum limit of $1 million in nonowned automobile coverage.

In a tort action brought against such subcontractor or employee, net economic damages shall be limited to $2 million per liability claim and $200,000 per automobile claim, including, but not limited to, past and future medical expenses, wage loss, and loss of earning capacity, offset by any collateral source payment paid or payable.

In a tort action brought against such subcontractor, noneconomic damages shall be limited to $400,000 per claim.

A claims bill may be brought on behalf of a claimant pursuant to s.

768.28 for any amount exceeding the limits specified in this paragraph.

Any offset of collateral source payments made as of the date of the settlement or judgment shall be in accordance with s.

768.76.

Section 24.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (3) of section 455.221, Florida Statutes, is reenacted to read:

455.221 Legal and investigative services.— (3) Any person retained by the department under contract Page 36 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 to review materials, make site visits, or provide expert testimony regarding any complaint or application filed with the department relating to a profession under the jurisdiction of the department shall be considered an agent of the department in determining the state insurance coverage and sovereign immunity protection applicability of ss.

284.31 and 768.28.

Section 25.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (5) of section 455.32, Florida Statutes, is reenacted to read:

455.32 Management Privatization Act.— (5) Any such corporation may hire staff as necessary to carry out its functions.

Such staff are not public employees for the purposes of chapter 110 or chapter 112, except that the board of directors and the employees of the corporation are subject to the provisions of s.

112.061 and part III of chapter 112.

The provisions of s.

768.28 apply to each such corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state but which is not an agency within the meaning of s.

20.03(11).

Section 26.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (3) of section 456.009, Florida Statutes, is reenacted to read:

456.009 Legal and investigative services.— Page 37 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 (3) Any person retained by the department under contract to review materials, make site visits, or provide expert testimony regarding any complaint or application filed with the department relating to a profession under the jurisdiction of the department shall be considered an agent of the department in determining the state insurance coverage and sovereign immunity protection applicability of ss.

284.31 and 768.28.

Section 27.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, paragraph (a) of subsection (15) of section 456.076, Florida Statutes, is reenacted to read:

456.076 Impaired practitioner programs.— (15)(a) A consultant retained pursuant to this section and a consultant's directors, officers, employees, or agents shall be considered agents of the department for purposes of s.

768.28 while acting within the scope of the consultant's duties under the contract with the department.

Section 28.

For the purpose of incorporating the amendment made by this act to section 768.28, Florida Statutes, in a reference thereto, subsection (3) of section 471.038, Florida Statutes, is reenacted to read:

471.038 Florida Engineers Management Corporation.— (3) The Florida Engineers Management Corporation is created to provide administrative, investigative, and prosecutorial services to the board in accordance with the Page 38 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 provisions of chapter 455 and this chapter.

The management corporation may hire staff as necessary to carry out its functions.

Such staff are not public employees for the purposes of chapter 110 or chapter 112, except that the board of directors and the staff are subject to the provisions of s.

112.061.

The provisions of s.

768.28 apply to the management corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state, but which is not an agency within the meaning of s.

20.03(11).

The management corporation shall:

(a) Be a Florida corporation not for profit, incorporated under the provisions of chapter 617.

(b) Provide administrative, investigative, and prosecutorial services to the board in accordance with the provisions of chapter 455, this chapter, and the contract required by this section.

(c) Receive, hold, and administer property and make only prudent expenditures directly related to the responsibilities of the board, and in accordance with the contract required by this section.

(d) Be approved by the board, and the department, to operate for the benefit of the board and in the best interest of the state.

(e) Operate under a fiscal year that begins on July 1 of each year and ends on June 30 of the following year.

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 (f) Have a seven-member board of directors, five of whom are to be appointed by the board and must be registrants regulated by the board and two of whom are to be appointed by the secretary and must be laypersons not regulated by the board.

All appointments shall be for 4-year terms.

No member shall serve more than two consecutive terms.

Failure to attend three consecutive meetings shall be deemed a resignation from the board, and the vacancy shall be filled by a new appointment.

(g) Select its officers in accordance with its bylaws.

The members of the board of directors who were appointed by the board may be removed by the board.

(h) Select the president of the management corporation, who shall also serve as executive director to the board, subject to approval of the board.

(i) Use a portion of the interest derived from the management corporation account to offset the costs associated with the use of credit cards for payment of fees by applicants or licensees.

(j) Operate under a written contract with the department which is approved by the board.

The contract must provide for, but is not limited to:

1.

Submission by the management corporation of an annual budget that complies with board rules for approval by the board and the department.

2.

Annual certification by the board and the department Page 40 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 that the management corporation is complying with the terms of the contract in a manner consistent with the goals and purposes of the board and in the best interest of the state.

This certification must be reported in the board's minutes.

The contract must also provide for methods and mechanisms to resolve any situation in which the certification process determines noncompliance.

3.

Funding of the management corporation through appropriations allocated to the regulation of professional engineers from the Professional Regulation Trust Fund.

4.

The reversion to the board, or the state if the board ceases to exist, of moneys, records, data, and property held in trust by the management corporation for the benefit of the board, if the management corporation is no longer approved to operate for the board or the board ceases to exist.

All records and data in a computerized database shall be returned to the department in a form that is compatible with the computerized database of the department.

5.

The securing and maintaining by the management corporation, during the term of the contract and for all acts performed during the term of the contract, of all liability insurance coverages in an amount to be approved by the board to defend, indemnify, and hold harmless the management corporation and its officers and employees, the department and its employees, and the state against all claims arising from state Page 41 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 and federal laws.

Such insurance coverage must be with insurers qualified and doing business in the state.

The management corporation must provide proof of insurance to the department.

The department and its employees and the state are exempt from and are not liable for any sum of money which represents a deductible, which sums shall be the sole responsibility of the management corporation.

Violation of this subparagraph shall be grounds for terminating the contract.

6.

Payment by the management corporation, out of its allocated budget, to the department of all costs of representation by the board counsel, including salary and benefits, travel, and any other compensation traditionally paid by the department to other board counsel.

7.

Payment by the management corporation, out of its allocated budget, to the department of all costs incurred by the management corporation or the board for the Division of Administrative Hearings of the Department of Management Services and any other cost for utilization of these state services.

8.

Payment by the management corporation, out of its allocated budget, to the department of reasonable costs associated with the contract monitor.

(k) Provide for an annual financial audit of its financial accounts and records by an independent certified public accountant.

The annual audit report shall include a management letter in accordance with s.

11.45 and a detailed supplemental Page 42 of61 CODING:

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hb0985-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB985 2022 schedule of expenditures for each expenditure category.

The annual audit report must be submitted to the board, the department, and the Auditor General for review.

(l) Provide for persons not employed by the corporation who are charged with the responsibility of receiving and depositing fee and fine revenues to have a faithful performance bond in such an amount and according to such terms as shall be determined in the contract.

(m) Submit to the secretary, the board, and the Legislature, on or before October 1 of each year, a report on the status of the corporation which includes, but is not limited to, information concerning the programs and funds that have been transferred to the corporation.

The report must include:

the number of license applications received;

the number approved and denied and the number of licenses issued;

the number of examinations administered and the number of applicants who passed or failed the examination;

the number of complaints received;

the number determined to be legally sufficient;

the number dismissed;

the number determined to have probable cause;

the number of administrative complaints issued and the status of the complaints;